Clark County Paraprofessional Employees, Local 546A, AFL-CIO, and Clark County
Courthouse Employees, Local 546B, AFL-CIO, herein collectively referred to as the
"Union," and
Clark County, herein referred to as the "County" or "Employer," are parties to a

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collective bargaining agreement that provides for final and binding arbitration of
grievances. The
Union and the Employer jointly selected the undersigned from a panel of arbitrators of the
staff of
the Wisconsin Employment Relations Commission to serve as the impartial arbitrator to hear
and
decide the dispute specified below. The parties agreed to consolidate these cases for the
purposes
of hearing and decision. An arbitration hearing was on September 23, 2009 in Neillsville,
Wisconsin. The record closed on November 24, 2009, following receipt of the parties'
post-hearing
written argument.

ISSUES

The parties have stipulated to the following statement of the issues:

Did the County violate the collective bargaining agreement including wage
schedules by unilaterally switching from a one-week pay delay to a two-week pay
delay?

If so, what is the remedy?

The parties further stipulated that the grievances are properly before the arbitrator.

PERTINENT PROVISIONS

OF THE 2007-2008-2009 CONTRACTS

LOCAL 546A

ARTICLE II- MANAGEMENT PREROGATIVES

2.1 Except as otherwise specifically provided in this Agreement, the
County
retains all the rights and functions of management that it has by law.

2.2 Without limiting the generality of the foregoing, this includes:

A. The determination of services to be rendered, and the
right to plan,
direct and control operations.

B. The location of the work, including the establishment of
new offices,
departments and the relocation or closing of offices or departments.

C. The determination of the equipment to be used and the
providing of
services; the methods and means of providing services as well as the
right to introduce new methods, jobs or classifications, or

D. The determination of the size of the work force; the
assignment of
work or workers; the determination of policies affecting the selection
and training of employees, and the right to hire, recall, transfer,
promote, lay off, suspend or dismiss employees for just cause.

E. The establishment of reasonable quality and workmanship
standards
except as provided herein.

F. The maintenance and disciplinary control in use of
County property.

G. The scheduling of operations and starting time of shifts;
the right to
cease operations for any reason not in violation of this Agreement; the
transfer of employee or employees from one job to another or from
one department to another; and the assignment of overtime as
necessary, except as provided herein.

H. The determination and enforcement of reasonable rules
and
regulations and the right to make reasonable changes to such rules
and regulations and to enforce such changes, except as provided
herein.

I. To maintain efficiency of government operations
entrusted to it.

J. To take necessary action to carry out the functions of the
County in
situations of emergency.

K. To take necessary action to comply with state or federal
law.

L. The determination as to whether, and to what extent, any
work shall
be performed by employees; however, the Union does not waive any
rights to bargain that it has by law. Provided, however, the Union
does not waive the right to bargain the impact or the exercise of these
management rights on wages, hours, and conditions of employment.

2.3 The County agrees that none of these rights shall be used for the
purpose of
discriminating against any employee because of membership or

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nonmembership in the Union, or against any member of the Union because
of proper Union activities.

. . .

ARTICLE XIX - ENTIRE AGREEMENT
CLAUSE

19.1 This Agreement shall constitute the entire Agreement between
the parties that
no oral statements or County Board resolutions shall supersede. Any
amendment shall not be binding on any of the parties unless executed in
writing and signed by both parties. Waiver of any breach of this Agreement
by the parties in writing shall not constitute a waiver of any future breach of
this Agreement.

19.2 In the event any clause or portion of the Agreement is in
conflict with the
statutes of the State of Wisconsin governing municipalities or other statutes,
such clause or portion of the Agreement shall be declared invalid and
negotiations shall be instituted to adjust the invalidated clause or portion
thereof.

. . .

LOCAL 546B

. . .

ARTICLE II- MANAGEMENT RIGHTS

2.1 Except as otherwise specifically provided in this Agreement, the
County
retains all the rights and functions of management that it has by law.

2.2 Without limiting the generality of the foregoing, this includes:

A. The determination of services to be rendered, and the
right to plan,
direct and control operations.

B. The location of the work, including the establishment of
new offices,
departments and the relocation or closing of offices or departments.

C. The determination of the equipment to be used and the
providing of
services; the methods and means of providing services, as well as the right to introduce
new methods, jobs or classifications, or

D. The determination of the size of the work force; the
assignment of
work or workers; the determination of policies affecting the selection
and training of employees, and the right to hire, recall, transfer,
promote, lay off, suspend or dismiss employees for just cause.

E. The establishment of reasonable quality and workmanship
standards
except as provided herein.

F. The maintenance and disciplinary control in use of
County property.

G. The scheduling of operations and starting time of shifts;
the right to
cease operations for any reason not in violation of this Agreement; the
transfer of employee or employees from one job to another or from
one department to another; and the assignment of overtime as
necessary, except as provided herein.

H. The determination and enforcement of reasonable rules
and
regulations and the right to make reasonable changes to such rules
and regulations and to enforce such changes, except as provided
herein.

I. To maintain efficiency of government operations
entrusted to it.

J. To take necessary action to carry out the functions of the
County in
situations of emergency.

K. To take necessary action to comply with the State or
Federal laws.

L. The determination as to whether, and to what extent, any
work shall
be performed by employees; however, the Union does not waive any
rights to bargain that it has by law.

Provided, however, the Union does not waive the right to bargain the impact
or the
exercise of these management rights on wages, hours, and conditions of
employment.

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2.3 The County agrees that none of these rights shall be used for the
purpose of
discriminating against any employee because of membership or
nonmembership in the Union, or against any member of the Union because
of proper Union activities.

. . .

ARTICLE XVII - ENTIRE AGREEMENT

17.1 This Agreement shall constitute the entire Agreement between
the parties that
no oral statements or County Board resolutions shall supersede. Any
amendment shall not be binding on any of the parties unless executed in
writing and signed by both parties. Waiver of any breach of this Agreement
by the parties in writing shall not constitute a waiver of any future breach of
this Agreement.

. . .

FACTS

On or about June 25, 2008, the parties entered into the 2007-2008 collective
bargaining
agreement for Local 546-B. The parties also entered into a 2007-2008 collective bargaining
agreement for Local 546-A.

By September 8, 2008, the Union had ratified a 2009 extension to the Local 546-A
and 546-B
agreements. The County ratified this extension on or about October 2, 2008.

On November 25, 2008, the County Personnel Manager sent Union Representative
Houston
Parrish an e-mail with the "Subject" of "Pay dates" that includes the following:

. . .

As you may have heard Clark County is moving to a timekeeping system in an effort
to streamline the payroll process. In addition, we are looking at the way we process
payroll and when. Currently, the Payroll and Benefits Coordinator does payroll every
week. We would like to shift some dates in order that payroll processing be done on
a bi-weekly basis for all employees. This of course would affect the union staff as
well, Attached is a chart showing what the pay periods would be if we left the system
as is and what would change if we modified a few pay dates. We would like to give
employees notice of this change ASAP and the Personnel Committee will be meeting
on 12/1/08 to review the attached as well. Would it be possible for you to review and
let me know if you think there will be significant issues? Or if there is a way I could

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explain it better so that the membership would understand they are continuing to be
paid the same amount for 2009, it will just have different pay dates? I'd appreciate
any assistance you could offer. Thanks.

. . .

The County Personnel Manager attached payroll schedule charts to explain the
discussed
modifications.

Union Representative Parrish responded to the County Personnel Manager in an
e-mail dated
November 25, 2008 that includes the following:

. . .

It looks like all employees will get 1 week's pay on 5/29/09 where they now would
get a 2 week paycheck. Many employees don't have that kind of cushion to play with
so I would, at the outset, guess that such a plan will cause an uproar.

I think you'd have a heck of a lot better luck paying employees 1 week early (e.g.
½
way through the normal pay cycle for 1 week's pay) than the other way around.

Is the proposed paydate of 6/6/09 for 1 week's pay or 2?

Thanks.

. . .

The County Personnel Manager's responsive e-mail, dated November 25, 2008,
includes the
following:

. . .

I guess I should have clarified. Currently we have three different payroll schedules:
the Health Care Center, Highway and the Courthouse. None of these have the same
pay period start/end dates or pay dates, What we are trying to do is make them all the
same. I left you a message, but thought I should add more in this e-mail as well.

Highway would receive a 1-week check on 5/29/09 (their regular pay date), a week
later, they would receive a two week check on (6/5/08). The Courthouse employees
currently receive their pay check one week after submitting their

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timesheet. With this change, they would then be the same as others and receive their
check two weeks after the last day of the pay period (they would continue to receive
cheeks on a bi-weekly basis).

We are planning these changes further out so that people may plan for them
(hopefully). We didn't want to do this at the beginning of the year as that is usually
a financially difficult time following the holidays. Bill Shockley stopped by and gave
some good suggestions on how to demonstrate the changes -- I will work on those
and forward them to you. Thanks.

. . .

The County's Personnel Manager sent an e-mail dated November 26, 2008 to Union
Representative Houston as well as to Local Union representatives that includes the following:

. . .

I have completed a calendar to demonstrate what the current pay periods are for 2009
and what we are proposing to occur in the end of May beginning of June. When the
changes take place the dates that are struck through are the pay dates
we would have
had should no changes take place. The regular type is what we are hoping to
accomplish. I know that this may be a big change for some, but we are hoping that
with the advance knowledge, they will be able to prepare for the shift.

Please let me know if this better explains what we hope to transpire and how it may
affect the employees of Clark County or if additional information is necessary.
Thanks.

. . .

Union Representative Parrish sent an e-mail dated December 2, 2008 to the County's
Personnel Manager that includes the following:

. . .

So which bargaining units, like 546B (courthouse) are going to have a permanent one
week "delay" under this proposal? 546B, 546A, 546D1 and 546D2?

I understand the county's intent and desire, but I don't see how we can agree to this
and the county certainly appreciates how this is going to harm its employees.

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I don't know if something can be worked out or not, but this is clearly a bargaining
issue and the county does not have the right to unilaterally implement this change.

I look forward to hearing from you.

. . .

The County Personnel Manager's e-mail response of December 2, 2008 includes the
following:

. . .

We can sit down and do "mid-term" bargaining on this issue if you would like. We
were thinking we could do something like this...

5/29/09-- pay 1/2 of employee's average net check

6/5/09 pay actual hours worked minus amount paid 5/29/09

6/19/09 -- resume regular two week pay period checks

Check dated 5/29/09 would be an actual check through the finance/voucher system

Pay on 6/5/09 would be direct deposit through payroll system.

Please let us know what you think. Thanks.

. . .

Union Representative Parrish sent an e-mail dated December 2, 2008 to the County's
Personnel
Manager that includes the following:

. . .

Can you more fully explain what you are proposing here? i.e., for the dates you list
below, for what days will the employees be being paid? And for which bargaining
units?

Thanks.

. . .

The County's Finance Manager sent a letter dated January 28, 2009 to "All
Courthouse
Payroll Employees" that states:

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. . .

To All Courthouse Payroll Employees

As some of you may be aware, with the onset of 2009, the Office of Finance was
required to reduce our staff by one. Specifically, the part-time limited position was
eliminated. With the loss of this position and an ever-tightening budget, we have
been re-evaluating processes and efficiencies while working to streamline operations
and provide the same or better services. To this end, we have requested and received
permission to modify some current payroll procedures.

Currently we process payroll in each and every week of the year. Both the Health
Care Center and the Highway are on a two week delay from the end of a pay period
to receiving their paychecks. In our continued effort to streamline operations, we
have received approval to modify the courthouse payroll to be on the same two week
delay. This will allow for the major payrolls to be processed and paid every other
week.

To accomplish this task, with the best interests of the employees in mind, we have
chosen to begin this process at the end of May 2009. Normally, May 29th would be
a third payroll and thus appeared the most beneficial time in which to implement this
modification.

Therefore, on May 29, 2009, you will receive approximately half of your net payroll
check as a "payroll advance." This will be done through the voucher system and will
be an actual physical check. On June 5th this "advance" will be deducted from your
regular payroll check. For example, an employee normally receives $800.00 bi-weekly.
With this modification, the employee would receive $400 on 5/29 and any
adjustments (overtime, etc) on 6/5/09. Following the June 5th payroll
deposit, pay
checks will continue on a bi-weekly basis.

Attached is a 2009 calendar indicating the modification of the pay dates for the year.
May 29th is shaded in order to indicate .where the adjustments to the pay
procedure
will begin.

To further assist in the financial process, we would request that those responsible for
vouchers submit the majority of vouchers for payment on the week opposite of
payday.

We hope that with this advance notice, employees will be able to plan for this
transition. Your cooperation is truly appreciated. Thank you.

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. . .

Union Representative Parrish responded to the letter of January 20, 2009 with an
e-mail dated
January 29, 2009 and addressed to the County Personnel Manager. This letter contained a
series of
questions. These questions and the County Personnel Manager's response thereto (in italics)
are as
follows:

. . .

I note the 1/28/09 letter to Courthouse employees states that the payroll change from
a one-week to a two-week delay means that "major" payrolls will now be every other
week. Thus it appears some payrolls will still be operating on the other weeks. Which
ones are those?

When we say "major payrolls" this refers to Highway, Health Care Center,
ADS --Client Employees and Courthouse. The other payrolls (not major) are
monthly payrolls for County Board and Health Care Center--Patient
Employees.

And, what delay are all of the nonreps on? i.e., a) management and b) unrepresented
management? Will all employees be on a two week delay if this goes through?

Currently, non reps are on a one week delay, the same as 546B, 546D-1
&
2 and 546A. Highway is currently on a two-week delay but the dates covered
are different from the others. If/when this change takes place non-represented
staff will be impacted the same as the unions indicated above.

Also, do I correctly understand that the courthouse units {546A, 546B, 546D1 and
546D2) are the only ones affected? Highway will be entirely unaffected?

No, we did separate memos for Courthouse and Highway employees as the
groups will be impacted differently because of the current differences in their
payrolls. I have attached a copy of both memos for you to look at.

If so, then the calendar you e-mailed me some time ago seems inaccurate, as the 5/29
paydate for highway indicates pay for only one week on that date. Can you explain
that?

Please see my answer above.

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Regardless, while I understand why the county wants to do this, the county could also
just put all employees on the one week delay if it wanted to process all payroll checks
at the same time.

While I think that would be great, it isn't realistic with the quantity of staff
involved. With our current staffing and systems, it would not be possible to
process over 600 timecards and paychecks in 6 days (less than that on weeks
with holidays).

As I understand it, the county proposes holding one week of the courthouse
employees checks until that employee retires. That effectively is what switching
from a one week to a two week delay means. I.e., that employee will never
recapture
that money until he/she leaves employment. That is an enormous issue.

Maybe I am not understanding this... we are not keeping any money from
employees indefinitely.

Frankly, I cannot imagine why the employees would ever agree to this. I agree (as
you've alluded to) that the matter must absolutely be bargained and if the county does
this unilaterally the unions will be forced to file numerous prohibited practice charges
against the county. There may also be other legal ramifications in that the county is
admittedly keeping employees' money for a week on an indefinite basis.

I was under the impression that the county was going to try to figure out a way
around this but I was apparently mistaken.

No, you were not mistaken we have tried to come up with alternatives to ease
employees through this process. The only other option that we see would be
to gradually change the date of the pay check 1 day at a time and I think that
would be more confusing and frustrating to the employees involved.

You have previously mentioned wanting to bargain early this term. I am agreeable
to that idea, I believe we need to address this issue before it reaches a crisis level. I
will speak to my members about this in the near future, but it is incumbent upon the
county to propose a solution to this issue in the event the unions do not (i.e., the party
wanting to change the contract bears the burden to justify the change and offer a fair
quid pro quo).

We are open to discussion. Please let me know when you would be available
to sit down and discuss this issue.

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I hope you know that I always encourage my members to cooperate with the county
whenever possible. I do not see the employer-employee/union relationship as an
adversarial one. However, this is a significant violation of employees rights that
cannot simply be agreed upon without being bargained.

I look forward to hearing from you.

Thank you,

. . .

In an e-mail dated February 4, 2009, Union Representative Parrish advised the County
Personnel
Manager of the following:

I think we should hold off on a meeting so let's not meet this Friday. I don't want to
do anything premature.

Preliminary research shows that Waupaca, Wood, Chippewa, Jackson, and Taylor are
all on a one week delay. Only Eau Claire County is on a two week delay to my
knowledge, though I still have some information requests pending.

Since the majority of Clark County is already paid on a one week delay and the vast
majority of comparables are as well I have a hard time advising my members to take
a two week delay, If you have additional information, however, I would be pleased
to review it.

Thanks,

. . .

The County Personnel responded in an e-mail dated February 4, 2009 as follows:

. . .

I currently do not have that information for external comparables, however if you
look at the internal comparables, they would include employees in the AFSCME
Union (546) aswell as the Teamsters Union at the health care center.

I can look into the others...

. . .

In an e-mail to the County Personnel Manager dated April 3, 2009, Union
Representative
Parrish states:

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. . .

Do you want to meet at 9 am this Thursday for the payroll negotiation?

While I understand WPPA accepted this change for no compensation I do not
anticipate AFSCME doing that. In fact, I am sure the change will not be affected
without substantial compromise and a tender of the savings created from withholding
our members pay, so if that renders the need to meet moot please advise.

Thank you,

. . .

The County Personnel Manager responded in an e-mail dated April 6, 2009 as follows:

. . .

I am not sure if you have heard or not, but the account in which payroll monies are
kept is required to be a 0% interest account. There are NO cash savings involved in
this change. We are still willing to meet to discuss the issue.

I would also be happy to attend one of your union meetings to explain this to anyone
who is interested. If you would like a copy of the policy regarding the 0% interest,
I am more than happy to forward it to you as well.

. . .

Union Representative Parrish responded in an e-mail dated April 6, 2009 as follows:

. . .

Thank you, but that does not change the fact that the county is still saving money in
the current budget by withholding employees' paychecks.

And even if no money is saved at all, it does not resolve the issue that these funds
are
being withheld from their rightful owners.

I understand from your e-mail, and our numerous prior discussions, that the county
is unwilling to compensate the employees for substantial change.

I will proceed accordingly and have little choice but to ask the WERC to intervene
in the near future.

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I will proceed with that course of action unless and until I hear from the County that
it has reconsidered its position.

Thank you,

. . .

The parties met on April 9, 2009. In a letter dated April 22, 2009, the County
Personnel Manager
advised Union Representative Parrish as follows:

. . .

On April 9, 2009, we met to negotiate the possible implementation of a change in the
pay dates beginning in May of 2009. During this discussion, the Union proposed the
following:

546 - Hwy Unit: Employees receive the day after Thanksgiving off with pay for
2009 in exchange for moving the pay date and adding in
an extra 1/2 check for the year.

546A, 546B, 5460-1 &2: Employees receive 2 1/2 days of pay in exchange
for
moving the pay date one week.

The County has considered your offer and have determined that we are unable to
accept the terms you propose. We continue to offer the following:

Employees in the 546A, 546B, 546D-1 &2 Units
will receive a
voucher check on 5/29/09 for half their average net pay. On 6/5/09,
payroll will be processed as usual with the subtraction of the pay
advance provided on 5/29/09. Payroll will continue on a bi-weekly
basis from 6/5/09 forward.

Employees in the 546 Unit will receive a one-week check
on 5/29/09
and a regular two- week check on 6/5/09 in order to alter the start and
end dates of their pay periods to be consistent within the County.

The County is also willing to provide documentation of
this change
for any employee who may require it for pre-established auto
payments from their bank accounts.

We would like to continue with this process and ask that if you have any other offer
which we may consider in negotiating this change that you notify us on or before
April 30, 2009. Thank you.

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. . .

In an e-mail dated April 22, 2009, Union Representative Parrish responded as follows:

. . .

Despite it being the County's burden to offer the quid pro quo in this matter the
unions took the initiative and did that for the county. A simple "No, try again" is not
a sufficient response by the County. The locals decline to bargain against

themselves in this matter and will proceed accordingly.

. . .

In a letter dated April 23, 2009, the County Personnel Manager advised Union
Representative
Parrish as follows:

. . .

Your e-mail of April 22, 2009, stated:

Despite it being the County's burden to offer the quid pro quo in this matter the
unions took
the initiative and did that for the county. A simple "No, try again" is not a sufficient
response
by the County. The locals decline to bargain against themselves in this matter and will
proceed accordingly.

The County did provide a quid pro quo in that we offered to structure the
implementation of this change in phases to minimize the impact rather than just
implementing it in one step. In addition, we considered:

The timing of the change so that it did not fall close to
the end
of the year and the holiday season; at the beginning of the
year, so not as to come on the heels of the holiday season; and
after most staff would have filed and dealt with taxes and
possibly received returns; and

In considering the timeline, we also provided significant
notice of our desire for the change.

In continuing our bargaining on this issue, Clark County requests that the union
provide a dollar itemization of the cost of the County's proposal on your unit
members to justify your economic proposal.

. . .

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In an e-mail dated April 27, 2009, Union Representative Parrish advised the County
Personnel
Manager that the unions will grieve the proposed payroll changes and suggested that the
parties
bypass initial steps of the grievance process. The County Personnel Manager's responsive
e-mail
of the same date contains the following:

. . .

As we have not yet implemented any changes, I believe discussing the grievance
process would be premature. Does your position on taking this to a grievance mean
you no longer want to negotiate?

. . .

Union Representative Parrish responded with the following e-mail dated April 27,
2009:

. . .

Clearly the parties are at impasse so yes we are done negotiating. As the county has
not backed off on its implementation date we can but are not obligated to wait to
grieve the matter. I would appreciate a reply on my earlier e-mail. Thank you.
Houston.

. . .

In an e-mail dated April 29, 2009 and addressed to the County Personnel Manager,
Union
Representative Parrish states:

. . .

I should clarify that even if the county wishes to make a counter offer to attempt to
revive the negotiation, the locals will proceed with the grievances, so your response
is still needed. We can always drop the grievances later if they

become moot.

. . .

In a letter dated May 7, 2009, the County's Personnel Manager advised Union
Representative Parrish
of the following:

. . .

Your e-mail of April 27, 2009, stated:

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"Clearly the parties are at an impasse so yes we are done negotiating. As the County
has not backed off on its implementation date we can but are not obligated to wait to
grieve the matter. I would appreciate a reply on my earlier e-mail. Thank you.
Houston"

You have also not responded to my request of April 23, 2009 requesting a dollar
itemization of the cost of the County's proposal on your unit members to justify your
economic proposal. We remain willing to negotiate with you to discuss your
assessment of the costs to your unit members. However, given your refusal to further
discuss this matter with us and your belief that impasse has occurred, which we do
not dispute given your stance, the County will proceed with implementation of our
offer.

This offer, as indicated previously, includes:

Employees in the 546A, 54GB, 546D- 1&2 Units
will receive a
voucher check on 5/29/09 for half their average net pay. On 6/5/09,
payroll will be processed as usual with the subtraction of the pay
advance provided on 5/29/09. Payroll will continue on a bi-weekly
basis from 6/5/09 forward.

Employees in the 546 Unit will receive a one-week check
on 5/29/09
and a regular two- week check on 6/5/09 in order to alter the start and
end dates of their pay periods to be consistent with the majority of
staff within the County.

The County is also willing to provide documentation of
this change
for any employee who may require it for pre-established auto
payments from their bank accounts. Employees who require this letter
should contact me directly.

As I indicated to you via e-mail on 5/1/09, the County will agree to bypass steps 1
&
2 of the grievance procedure and allow filing of the grievance with the Personnel
Committee at step 3. Given our planned implementation date, we do not object to
your filing of a grievance prior to implementation of our plan.

. . .

On or about May 18, 2009, Local 546A and 546B each filed a grievance. The
grievance of
Local 546A states: "Employer has declared it will unilaterally hold employees' pay for two
weeks
instead of the one week delay that has been the practice for many years" and contends that
management has violated "Wage table and past practice recognizing employees are to be paid
on a
one-week delay. And Article 1.1 failure to bargain to agreement

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on changes in wages and conditions. Any other applicable provision." The grievance
of Local 546B
states: "County will unilaterally hold employees' pay for 2 weeks instead of the 1 week delay
that
has been the practice for many years" and contends that management has violated "-Wage
table and
past practice recognizing that employees are to be paid on a one-week delay. -Article 1.1
­ failure
of County to successfully bargain a desired change in contract regarding wages/conditions.
­ Any
other applicable provision."

The County denied the grievances. Following this denial, the parties submitted the
grievances to arbitration.

POSITIONS OF THE PARTIES

Union

It is undisputed that for decades the County has paid members of the Local 546A and
546B
bargaining units on a one-week pay delay; with the effect that employees would be paid
Friday
January 8 for the pay period that ended January 1. In May 2009, the County unilaterally
switched
to a two-week delay; with the effect that employees would be paid Friday January 15 for the
pay
period that ended January 1.

At the time of the switch, the parties had agreed on the terms of their 2009 collective
bargaining agreements. The County had never proposed changing the payroll delay during
the
bargaining process, including the negotiations that lead to the 2009 agreements.

The Union's representative repeatedly informed the County that such a switch would
violate
the Union's contracts and the parties' past practice and that it was up to the County to offer
some
type of quid pro quo in order to obtain the bargaining units' agreement to switch. The
Union's
representative also informed the County that the vast majority of surrounding counties are on
a one-week payroll delay.

The parties did not reopen contracts on this issue. In April of 2009, the parties met
to attempt
to negotiate a resolution to forestall a grievance. This negotiation failed because the County
refused
to offer any form of quid pro quo for the change. The County's proposal to "bargain" the
impact of
the change was for the Union to accept the County's plan prior to implementation. The
County's
proposal is not bargaining.

In the exercise of its lawful discretion, the Union opted to file grievances over
prohibited
practices charges. The County's mid-term bargaining defense is only relevant if the Unions
had filed
prohibited practice claims.

The Union has consistently made clear to the County that the County was under an
obligation
to continue paying employees on a one-week delay unless the parties reached an agreement to
the
contrary. Contrary to the argument of the County, the Union has not waived

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any right to argue unilateral change in the grievance process or enforce its contractual
rights in the
grievance process.

The Union's contracts have tables establishing wages. The decades-old practice is
interpretive of the contracts; including when wages are to be paid. As Local 546B President
Smagacz and Local 546A President McDonell testified, they were informed of this one-week
delay
when they were hired. Assuming arguendo, that Article 17.1 was a zipper
clause, it would have no
bearing on this type of past practice.

As President Smagacz further testified, the two-week pay period referenced in
Article VIII
of the 546B contract did codify a two-week pay period. It was his understanding, however,
that this
change codified current practice that included the one-week pay delay.

If, as the County claims, it wished to have a more efficient payroll operation, then
the
County
could have switched all of its employees to a one-week delay. Such a switch would not have
harmed
any employee by withholding employee pay for an additional week.

The parties' payroll practice was consistent, mutual and long-standing. The County's
unilateral change in this practice has harmed members of the Union's collective bargaining
units.

The Union requests that the arbitrator sustain the grievances. Additionally, the Union
requests that the arbitrator order the County to revert to a one-week pay delay for these
bargaining
units.

Employer

Under WERC case law, a change in the schedule of payroll periods is a mandatory
subject
of bargaining. A municipal employer has a duty to bargain during the term of a contract
with respect
to all mandatory subjects not dealt with in the contract unless the union has waived its right
to
bargain over those subjects. If such mid-term bargaining results in impasse, then an
employer may
make unilateral contract changes that are consistent with its last offer.

The 2009 agreements were settled by the time that the County Board decided to
reduce
staffing in the Finance Department; which was the original catalyst for streamlining payroll
processes. There was no reason to raise the issue during the May 13, 2009 negotiation
session for
the 2010 successor agreements because the parties had already agreed that they were at
impasse.

When the County notified the Union of its proposed payroll changes, it recognized it
had a
duty to bargain the issue. The County offered to enter into "mid-term" bargaining and

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the Union responded in a manner that indicates that the parties engaged in "mid-term"
bargaining,
rather than "negotiations to avoid a grievance."

Mid-term bargaining does not require the parties to re-open the entire contract. Nor
does it
require the parties to reach an agreement.

The parties' contracts direct the parties to negotiate over the impact or exercise of the
County's management rights on wages, hours and conditions of employment. The parties
bargained
in good faith to impasse and, thereafter, the County acted lawfully when it implemented
changes
consistent with its last offer of April 9, 2009.

The County had good reasons for its payroll change. The County took steps to
minimize the
impact of the change upon its employees. All employees received their contractual wage rate
and
the County did not make a profit on any payroll monies. Converting all County employees
to a one-week delay was not workable because it would have provided the Finance
Department with only six
days to process over 600 paychecks.

The parties agree that the contracts of Locals 546A and 546B do not contain
contractual
language addressing how employees will be paid. Thus, this is not a case in which past
practice
interprets contract language. The determination of whether to pay employees on a one-week
or two-week delay is a right reserved to management under the management rights clauses.

There is no evidence that a one-week pay delay was agreed upon by the parties. The
binding
past practice claimed by the Union lacks the essential element of mutuality. Additionally,
each
contract contains a "zipper clause;" which would preclude enforcement of extra-contractual
items.

The County's implementation of the revised bi-weekly payroll schedule did not
violate
the
contract. The grievance should be denied.

DISCUSSION

It is undisputed that, for more than twenty-five years, employees in the bargaining
units
represented by Locals 546A and B have been paid based on a one-week pay delay. Under
the one-week pay delay, if the pay period ended on Friday, then the employee would receive
the pay for that
pay period the following Friday.

In May of 2009, the County changed its payroll procedures with the effect that
employees
in the bargaining units represented by Locals 546A and B now are paid based on a two-week
pay
delay. Under the two-week pay delay, if the pay period ended on Friday, then the employee
would
receive the pay for that period pay on the second Friday thereafter.

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The Union, contrary to the County, argues that there is past practice evidence that is
"interpretive" of contract rights. Evidence of past practice may be relevant for one of three
purposes.
These purposes are to (1) provide the basis of rules governing matters not included in the
written
contract, (2) indicate the proper interpretation of ambiguous contract language, or (3) support
allegations that the clear contract language of the written contract has been amended by
mutual
action or agreement of the parties. Elkouri & Elkouri, How Arbitration
Works 630 (5th ed. 1997)

In May of 2009, Local 546A and Local 546B bargaining unit employees were subject
to
collective bargaining agreements that, by their terms, expired on December 31, 2009. The
parties
agree that these agreements do not contain any provision that expressly addresses the length
of delay
between the end of a pay period and the employee's receipt of pay for that period. Thus,
this is not
a case in which evidence of past practice is offered to amend clear contract language.

As the County argues, Article XIX of the Local 546A agreement and Article XVII of
the
Local 546B agreement each state that "Any amendment shall not be binding on any of the
parties
unless executed in writing and signed by both parties." Accordingly, this contract does not
permit
the use of past practice evidence to amend the contract by imposing a term of contract that is
external
to the parties' signed, written agreements.

In this case, the only "interpretive" use of past practice evidence is to indicate the
proper
interpretation of ambiguous contract language. As the Union argues, such use does not
conflict with
the Article XIX and Article XVII restrictions because the effect of such use would be not to
amend
the contract, but rather, to give effect to the contract language agreed upon by the parties.

As the Union argues, the Local 546A and 546B agreements each contain a wage
schedule.
These wage schedules identify a Job Title and/or Grade, wage steps and wages. These wage
schedules are devoid of any language that addresses payroll processes, in general, or pay
delay
specifically.

The wage schedules in the contracts of Local 546A and 546B do not contain any
ambiguous
contract language for which the past practice relied upon by the Union would indicate a
proper
interpretation. Nor has the Union identified any other "ambiguous" contract language for
which the
past practice relied upon by the Union would indicate a proper interpretation.

Additionally, to be useful as an interpretive tool, past practice evidence must establish
that
the asserted practice results from an agreement between the parties. At hearing, the
President of
Local 546B, Jim Smagacz, recalled that, from the time that he became a County employee in
1981
until the change that is the subject of this proceeding, the County paid his bargaining unit
employees
based on a one-week pay delay. President of Local 546A, Jackie

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McDonell, recalled that, at the time she was hired (approximately ten years ago), the
person in
payroll told her that she would turn in her payroll and be paid the next week and that, until
the
change that is the subject of this proceeding, she had always been paid on a one-week pay
delay.
President McDonell did not identify this payroll person or her position in the County's table
of
organization. Union Representative Parrish states that, in his review of Union records of the
past
25 years, he did not discover any bargaining proposal on the topic of pay delay.

Neither the Union Presidents, nor any other witness, recalled discussions between the
County
and representatives of either Local 546A or 546B regarding a one-week pay delay, or any
other pay
delay, prior to the time that the County raised this issue in November of 2008. As the
County
argues, the evidence of "past practice" establishes that the procedure of paying on a
one-week pay
delay has existed for many years, but fails to establish that this procedure was a product of a
mutual
agreement between the parties.

As the County further argues, each of the contracts contains a management rights
clause.
Each management rights clause states "Except as otherwise specifically provided in this
Agreement,
the County retains all the rights and functions of management that it has by law." Among
the
management rights specified by the parties are the right to "plan, direct and control
operations" and
the right to "introduce new methods . . . or change, delete, or combine existing methods . . .
." As
discussed above, the parties' contracts do not "otherwise specifically provide" a one-week
pay delay,
or any other type of pay delay. The facts of this case warrant the conclusion that the
determination
of the length of the pay delay is reserved to the County as a contractual management right.

The management rights clauses in the Local 546A and Local 546B agreements
contain
the
following restriction on the County's exercise of its management rights:

2.3 The County agrees that none of these rights shall be used for the
purpose of
discriminating against any employee because of membership or
nonmembership in the Union, or against any member of the Union because
of proper Union activities.

The Union does not argue and the record does not establish that the County has
exercised its
management rights in a manner that discriminates against employees based upon Union
membership
or proper Union activity.

The written statements of County managers, as well as the testimony of the County
Personnel
Manager, indicate that the change to a two-week pay delay was due to a County Board
decision to
reduce the Office of Finance staff by one and a County desire to streamline operations by
having
major payrolls processed and paid every other week. The County has offered legitimate
business
reasons for its decision to change from a one-week to a two-week pay delay. The Union has
not
argued and the record does not establish that the County's

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decision to change to a two-week pay delay was motivated by other than its stated
business reasons.

As the Union argues, the County first raised the issue of a two-week pay delay after
the
parties had agreed to their 2009 contract. It is not evident, however, that the County was
contemplating any change to the one-week pay delay prior to the time that the parties agreed
upon
their 2009 contract. The timing of the County's proposal to implement a two-week pay
delay does
not warrant the conclusion that the County has acted in bad faith.

As the County argues, the change from a one-week pay delay to a two-week pay
delay does
not deny any employee his/her contractual wages. As the Union argues, the change from a
one-week
pay delay to a two-week pay delay has the permanent effect of lengthening the period
between
paychecks; with the effect that employees have to wait longer to receive their pay.
Financially
strapped bargaining unit members may have difficulty in obtaining creditor's agreement to
change
payment due dates; which may subject them to the exorbitant charges for late/under
payments on
debt that are commonly imposed by lending institutions. The testimony of Union President
McDonell establishes that, in fact, this change has caused financial problems for at least one
employee.

The Union argues that the "norm" in comparable counties is a one-week pay delay.
According to the County's Personnel Manager, the County has approximately 600
employees; the
Health Care and Highway employees comprise more than one-half of the workforce; and the
Health
Care and Highway employees were on a two-week pay delay at the time that Local 546A and
Local
546B employees were changed to a two-week pay delay. The record does not establish
otherwise.

In summary, in changing from a one-week to a two-week pay delay, the County has
deprived
the Union's bargaining unit employees of a valuable benefit. However, given the internal
comparability evidence, the record does not warrant the conclusion that a two-week pay
delay is
unreasonable, per se.

Statutory Duty to Bargain

The management rights clauses in the Local 546A and Local 546B agreements
contain
language that states "Provided, however, the Union does not waive the right to bargain the
impact
or the exercise of these management rights on wages, hours, and conditions of employment."
Relying on this language, the County argues that the parties' management rights clauses
direct the
parties to negotiate over the impact or exercise of the County's management rights on wages,
hours
and conditions of employment.

The provision relied upon by the County is not clear and unambiguous. However,
the plain
language of the provision does not direct the County to bargain with the Union. Nor does it
impose
a contractual duty upon the County to comply with its statutory duty bargain.

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Rather, the most reasonable construction of this plain language is that it recognizes that
the Union
has not waived its statutory bargaining rights. The parties have not offered any evidence,
such as
bargaining history or past practice, to establish that the parties intended any other
interpretation of
this provision.

As reflected in the stipulated issue, the Arbitrator's jurisdiction is limited to a
determination
of a contract violation. The County's arguments that it was required to engage in mid-term
bargaining over the County's pay delay proposal; that the parties bargained to impasse over
this pay
delay proposal; and that, therefore, the County has the statutory right to unilaterally
implement its
last offer have not been addressed by the Arbitrator. As the Union argues, the appropriate
forum to
determine violations of, or compliance with, the statutory duty to bargain is a prohibited
practice
proceeding before the WERC.

Conclusion

Under the facts of this case, the determination of the length of the pay delay involves
the
exercise of discretion reserved to the County under its contractual management rights clause.
The
record fails to establish that, in changing the length of the pay delay from one-week to
two-weeks,
the County has exercised its contractual management rights in an arbitrary, capricious or bad
faith
manner.

As the Union argues, this record does not establish that the Union has waived any
right to
argue unilateral change in the grievance process or to use the grievance process to enforce its
contractual rights. Contrary to the argument of the Union, however, this record does not
establish
that the County violated the collective bargaining agreement when it implemented a two-week
pay
delay in May 2009.

Based upon the above and foregoing, and the record as a whole, the undersigned
issues the
following:

AWARD

1. The County did not violate the collective bargaining agreement including wage
schedules by unilaterally switching from a one-week pay delay to a two-week pay delay.